STATE OF NEW JERSEY v. JORGE RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORGE RODRIGUEZ,

Defendant-Appellant.

__________________________________________________

February 11, 2014

Submitted February 4, 2014 Decided

Before Judges Fisher and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 06-10-1560, 08-03-0430 and 08-11-1848.

Joseph E. Krakora, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In 2007 and 2008, defendant was charged in three separate indictments with a host of theft, forgery and bad check offenses. On June 29, 2007, in Indictment No. 06-10-1560 (the first indictment), defendant pleaded guilty to third-degree conspiracy, N.J.S.A. 2C:5-2, and was sentenced to a three-year probationary term. On May 19, 2008, in Indictment No. 08-03-0430 (the second indictment), defendant pleaded guilty to fourth-degree theft, N.J.S.A. 2C:20-4. And, on December 5, 2008, in Indictment No. 08-11-1848 (the third indictment), defendant pleaded guilty to fourth-degree issuance of a bad check, N.J.S.A. 2C:21-5. On the last of these occasions, defendant was directed to appear for sentencing on December 23, 2008, but he did not then appear and was subsequently charged with fourth-degree bail jumping, N.J.S.A. 2C:29-7, in Indictment No. 09-04-0618 (the fourth indictment).

Defendant appeared for sentencing on the second and third indictments on April 20, 2009. He was sentenced to eighteen-month concurrent prison terms in both matters. At the same time, defendant was sentenced to a five-year prison term for violating the terms of the probationary sentence imposed on the first indictment; that prison term was ordered to run consecutively to the concurrent terms imposed in the judgments entered in the second and third indictments.

Defendant subsequently moved for reconsideration of his sentence for the purpose of permitting his entry into a drug treatment program. That motion was denied on May 29, 2009, and defendant appealed. The appeal was listed on an excessive sentencing oral argument calendar. We found no error or abuse of discretion and affirmed. State v. Rodriguez, No. A-4580-08 (App. Div. Mar. 10, 2010). The Supreme Court denied defendant's petition for certification. 202 N.J. 347 (2010).

Thereafter, by agreement, defendant pleaded guilty to fourth-degree bail jumping, N.J.S.A. 2C:29-7, as charged in the fourth indictment, and the State agreed to recommend a sentence not to exceed eighteen months that would run concurrently to the sentence imposed in the third indictment. Although the record on appeal does not contain a copy of the judgment of conviction in the bail-jumping matter, we assume from other items in the record on appeal that an eighteen-month term was imposed on December 23, 2010.

On November 15, 2011, defendant filed a post-conviction relief (PCR) petition that addressed the first three indictments, arguing, among other things, that: the evidence put before the grand jury on the bail-jumping matter was "erroneous and insufficient to sustain the indictment"1; defendant's "long-standing drug abuse and dependency" was the cause of his criminal history and a change in the custodial aspect of his sentence was warranted; and he was denied the effective assistance of counsel. In a lengthy and thorough oral opinion, the PCR judge denied relief. Among other things, the judge determined that a motion to dismiss the bail-jumping indictment would not have been successful, the motion to change the custodial aspect of the sentences was previously denied and for good reasons,2 and that defendant failed to sustain his burden of proving both prongs in his ineffective-assistance-of-counsel argument.

Defendant appeals, arguing:

I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING PETITIONER A MEANINGFUL HEARING ON HIS POST-CONVICTION

MOTION.

A. THE ORDER DENYING POST-CONVIC-TION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING SINCE DEFEN-DANT HAS ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE-ASSISTANCE-OF COUNSEL DENYING HIM DUE PROCESS OF LAW AT HIS SENTNCING HEARING OF APRIL 20, 2009 WHEN COUNSEL FAILED TO EFFECTIVELY ARGUE AGAINST THE IMPOSITION OF A "NO SHOW-NO REC" SENTENCE.

B. THE ORDER DENYING POST-CONVIC-TION RELIEF BASED ON TRIAL COUN-SEL'S FAILRUE TO MOVE TO DISMISS THE BAIL JUMPING INDICTMENT MUST BE REVERSED AND REMANDED SINCE THE POST-CONVICTION COURT RELIED UPON FACTS NOT SUPPORTED BY THE EVI-DENCE AND FAILED TO CONDUCT A HEAR-ING ON CONTESTED FACTS.

C. THE POST-CONVICTION COURT ERRED IN DENYING POST-CONVICTION RELIEF IN THE WITHIN MATTER BASED ON THE PROCEDURAL GROUNDS THAT AN APPEAL SHOULD HAVE PREVIOUSLY BEEN FILED.

II. THE ORDER DENYING ENTRY INTO A DRUG-TREATMENT PROGRAM SHOULD BE REVERSED SINCE THE TRIAL COURT ERRED IN DENYING RELIEF.

We find insufficient merit in these arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

1We question how the sufficiency of the fourth indictment was a proper subject for discussion in a PCR petition that related only to the first three indictments, but the PCR judge considered the argument on its merits, and we will as well. We also note that defendant's notice of appeal does not seek review of the bail-jumping conviction.

2The judge also noted that the earlier motion was denied prior to defendant's direct appeal to this court in 2010 and either should have been raised in that appeal or, if it was raised, was implicitly rejected by this court when we affirmed.